Hillary Clinton's Been Talking About The USA's Mental Health Parity Law. What Would An English One Look Like?

06/09/2016 14:27
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Updated
06 September 2016

Gregory Smith
Postgraduate law student; formerly Policy Analyst at the Royal College of Psychiatrists

Andrew Bret Wallis via Getty Images

Welcome word recently arrived from across the pond about Hillary Clinton's latest effort to trump Trump, via a comprehensive announcement about improving mental healthcare. This prominence follows a similar boost in political attention in England, where we've seen Jeremy Corbyn use two questions from his first PMQs session to talk about mental health, and Theresa May use her inaugural speech as PM to name inadequate mental healthcare as one of the key contemporary social injustices, alongside poverty, gender and racial discrimination.

One particularly eye-catching element of Clinton's proposals is the beefing up of an existing American law - the Mental Health Parity and Addiction Equity Act of 2008 - which aimed to put mental and physical health on an equal footing. This law is geared towards equal access to insurance cover for mental health. But before this is dismissed as merely reflecting the (imperfect) American healthcare system, and thus being of no interest, let's try an interesting thought experiment: what would a law giving mental health parity with physical health look like in England?

A good place to start would be to challenge the oft-repeated claim that there is already such a law. An amendment was certainly passed during the passage of the 2012 Health and Social Care Act to give the Secretary of State for Health a duty to "secure improvement in the prevention, diagnosis and treatment of physical and mental illness". Since then, members of the government, including the erstwhile Prime Minister David Cameron, have claimed to have "legislated for parity". But parity of esteem means valuing mental health equally with physical health, and whatever the intention of the amendment's supporters, the actual wording does not reflect this core principle, since it is possible to technically secure improvement in two things while still disadvantaging one in practice. If there was such a law, the number of patients sent out-of-area - sometimes hundreds of miles away, wouldn't have more than quadrupled between 2011/12 and 2015/16.

Back to the thought experiment. A prominent place for parity provisions to be presented would be the NHS Constitution, which draws together the disparate bits of healthcare legislation into one source. This document (and its accompanying handbook) already points to two key areas of disparity for people with mental illness - the lack of a right to refuse treatment even if you have the mental capacity to make this decision, and unequal access to treatments.

At present, patients with a physical illness can refuse even life-saving treatment for this illness if they have 'mental capacity' to do so. In identical circumstances, patients with a mental illness who pose a risk to themselves can be treated for this illness if they refuse consent for the treatment, even if they too have the capacity to make this decision for themselves. Ironically for a document which proclaims that the NHS 'is designed to improve, prevent, diagnose and treat both physical and mental health problems with equal regard,' most mention of mental illness in the Constitution comes in a footnote which makes this logically unsustainable distinction clear. So an English parity law would recognise that if an adult with a physical illness who has the mental capacity to make a decision should have the right to refuse even life-saving treatment if their own health is imperilled, then this should be the case for someone with a mental illness if their own health is imperilled by a mental illness if they have the capacity to make that decision.

Unequal access to treatment is the other current legal lacuna. Maximum waiting times for physical healthcare have been based in statue for well over a decade, and the Coalition government quite legitimately made a grand song and dance about introducing the 'first ever' waiting times for mental health from 2016, with a full suite to follow by 2020. However - again, as a footnote in the current Constitution makes clear - the first wave of these waiting times aren't legally enforceable in the same way that the physical healthcare ones are. Perhaps unsurprisingly, it's recently become clear that the funding for these standards either isn't there at all or is being siphoned off to cover the deficits in nine out of ten of the Trusts providing physical healthcare. Putting these standards on a statutory basis - with ringfenced funding - would be a huge step forward in improving mental healthcare.

The current political prominence that mental health is enjoying is both welcome and meaningful. But promises of improvement have a habit of slipping, and the NHS' current parlous financial situation could plausibly lead to mental health tottering backwards instead of taking the leaps forward it needs. For once the American system is ahead of the English one - putting parity for mental health on a statutory basis should be applauded as both a lever for change, and as a clear check and balance against atrophy.